مجله پژوهش های فقهی
سال یازدهم شماره 1 (بهار 1394)

The moon of month has various discussions and aspects whereas the regulation of Muslim ruler، opposing the positivity of Zilhajjah moon and the evaluation of its juristic outcomes and consequences in Hajj rites is one of them. In the season of Hajj، the times of both the Woqoof are decided and declared by the regulation of Muslim ruler and Amir Alhajj whereas it is possible that in some cases the regulation of Muslim ruler may be incongruous with fact; likewise it is also possible that its incongruity with reality may be certain in some cases. In reference with the grounds and practices of Taqiyyah and some other particular traditions like in the Mu''tabirah Ibne Mughairah by Abi Jarood، obeying such the incongruous regulation is obligatory because of its being Hukm e Taklifi; whereas it is also specified as obligatory even in the case of being certain in its incongruity. However some of the jurists believe that the correctness of Hajj depends on the Woqoof e Izterari and some others believe that it depends on the practice of Heelah (tactfulness); finally practices and grounds of Taqiyyah and some other traditions like Mu''tabirah Ibne Sinan and Ibne Mughairah by Ibne Jarood implicate on the correctness and sufficiency of Hajj while in case of Taqiyyah (fearful or compromising)، the Haqeeqi Sanavi Hukm (Real Secondary Ruling) of Hajj، even in case of being certain in its incongruity، is ''correct'' and ''Ijza'' too

The common idea among the Imamiyeh jurists is that the price should be paid in contract meeting in a way that one of the conditions of the forward sale contracts is regarded as the necessity to submit the price in the meeting. It is not clear however that is this condition necessary to follow for the consolidation of the contract without which no ownership is determined? As it is the case in exchange of money، or the ownership is transferred to the buyer even before submitting the price. Although jurists have not explicitly discussed، asked or replied the above mentioned questions، they have implied to them. The traditions received around this subject are not capable of proving this condition، nor is there a general principle to refer to because with other proofs، there is no room for referring to the principle. Maybe the most important proof here is the consensus of the jurists which is undermined by many questions. An important point to notice is that to prove the necessity of this condition in such transactions many jurists have resorted to the invalidity of transacting debt with debt while the same jurists have referred to the necessity of the cash price in forward sale transactions to prove the invalidity of transacting debt with debt which will lead to the vicious circle. Considering above mentioned problems it is possible to omit this condition from the requirements of the validity of forward sale transactions.

This research paper is focused on the realm of government authority to explain whether the government can determine the punishment for doing certain act or the failure to perform it، the one which is considered as sin in Islamic Law (Sharia). First، it articulates the relationship between «crime» and «sin» and then six views exist in texts concerning Islamic jurisprudence are examined. The results obtained via this study show that onlysome ofthe sins haveworldlypunishment، not all sins. Hence،onlysomesinscan beconsidered as crime and the governmenthasthe right to interveneand punishtheirperpetrators. In addition to the sins which their punishments determined as Hadd (ordained punishments) or Ta’zir (punishments determined by jurists and judges)، those sins which have public aspects and threaten the established order، system and social security can be subject to worldly punishment and the governmentcouldinterveneas a guarantor ofits implementation. But the sins which have personal aspects and the Islamic Law (Sharia) had not determine any Hadd or ta’zir in these cases are specified with noworldlypunishment and the governmenthas noright to interveneand punish theguilty.

In cases of appealing to testimony، maturity and faith of the witness are among the conditions which are considered as necessary according to the consensus of Imami jurists and explicit statement of law through article 1313 of Civil Code and article 155 of the procedure of the public and revolution courts in the Criminal affairs. But: 1. contrary to the explicit statement of jurists and point 1 of article 1210 of C. C.، on the age of puberty (15 lunar years for males and 9 for women)، article 1314 of C. C. has necessitated age of 15 for the witness and hence has questioned the testimony of female witnesses aged between 9 to 15. 2. In jurisprudence، the testimony of 10 year old discriminating-minor boy is exceptionally accepted in cases of murder and injury. However، in law، despite a reference in the rest of article 1314 to the possibility of exception، the exceptional cases have been left unidentified. Therefore، some relate it to female witnesses aged between 9 to 15; in order to remove the contradiction of point 1 of article 1210 and article 1314 of Civil Code. 3. From the viewpoint of the Imamiyyah jurists، faith means believing in Twelver-Imam Shiism.; however، lack of limiting faith exclusively to Twelver-Imam Shiism in articles 1313 and 155، has caused some scholars to interpret faith as contrasted with disbelief، which is not correct.

Infect caused by crimes is one of subject that has been discussed in murder. In here، the main question is that whether Infection caused by an intentional crime، if the victim is dies، what will be the verdict? It is obvious that If convicted has intention of murder or crime that often spread to death، murder is attained. But the problem is where there is no intent to murder and felony often cannot be passed to life. this problem has been mentioned in criminal law and jurisprudence. In these discussion jurists are divided into two categories: The famous and the non- famous. The famous as evidence-based consensus، taking advantage of the principle of liability for effect of crimes without right، taking advantage of the other legal rules، have ordered the murder. While the non- famous، referring to version and public rules about murder، deny murder and pressed on semi-intentional murder. Review of reasons of them reveals that the non-famous judgment (taken semi- murder) is more compatible whit General rules of murder. Review of law makes clear that، legal measures is compatible whit The non-famous judgment، because different law systems (France، England and Iran) only by where delete obvious intention that the actions of perpetuer was been murderer in the most of cases and in some law system certainly murderer

Essentially social reaction to a crime is realized as punishment and such punishment leads to achieve the goals of the punishments. Such goals are achieved، if they are executed immediately and happen certainly. If the punishment is rapid and certain، it is just and useful. This legal principle has originated in religious jurisprudenceby virtue of the principle، «No delay is permitted in punishments»، but in some cases it has been delayed due to the prestige of the condemned party، third party، place validity، etc. in a way that if there is any obstacle regarding the order realization، it is delayed until the obstacle removal، but at the same time، the delay would be executed in the order execution in future so in penal actions the orders are enforceable and this principle is taken into consideration in the statutes of all countries specially in France.

Basically societies have norms and values ​which are collected in a set called the statute law، andnaturallyviolatethevalues​​ofcriminal law، make the crime and commit، deservesanctionspredicted forviolation oftheact. According to a simple thought، any action that harms or violates the values ​​and violate it should be punished only once; This idea is expressed in the form of the rule prohibiting the re-trial. Review of Iranian penal code indicates that the rule banning punished again (considering previous penalties) in different periods، are always ups and downs faced، and unit approach and the same before and after the revolution to this rule is not observed. So that legislators in Iran before the revolution، the rule explicitly accepted. But the rules after the revolution we are witnessing. Certainly the first principle، the Iranian laws in 1361 and 1370 has been canceled and then restore again in 1392. The authors in this paper are intended stating the meaning of this rule and distinguish it from similar concepts and terms، in particular، the basis for legal work in after the revolution roots and on the issue whether a legislative act in the removal of this rule corresponds to the state of jurisprudence، create and revive it again in the new Penal Code، based on the principles of jurisprudence.

Humanembryo is the honorable extant. According to Islamic sources such as: quran، tradition، ijma and wisdom،destroyingembryosasthe first verdict is prohibited. In this research، was conducted with descriptiveand analyticalmethods this question wasstudied thatif Genetic Abnormalitiesexist in the fetusso that medicallyto live Pregnant Impossibl eafter the birth and cause threatenfor live of mothers if embryo abortion would bepermissible? Conclusion of this research it is: according to verdict of mostjuristsand legislation of therapeutic abortion،embryo abortion before soul inspirationis permitted. While after the parturition live of embryo be possible and no threaten for mother،embryo abortion is prohibited. Butother caseson the basis rules Juridical such as: “La Zarar”، “La haraj،“Tazahum” and observance “Aham va Mohem” and also precariouslife Embryo Abortion as a second verdict is permitted.